Citation Nr: 1804669 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-18 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a right foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and AR ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from August 1989 to April 1997. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2016 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in September 2016. The September 2016 Board decision reopened the right knee and right foot claims and remanded them for additional development This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDINGS OF FACT 1. A right knee disorder was not present in service or within one year thereafter, and is not otherwise etiologically related to the Veteran's service. 2. A right foot disorder was not present in service or within one year thereafter, and is not otherwise etiologically related to the Veteran's service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist as to the matters being decided in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2016 at the RO. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives of September 2016. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duties to notify and assist are met, and the Board will address the merits of the claims. Applicable Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2017); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis At his July 2016 Board hearing the Veteran indicated that he had first injured his right knee in 1992 during physical training. He indicated that it continued to bother him during service and would be aggravated by jumping and crawling. He stated that he could not afford to treat his right knee after service and would just take over-the-counter pain medications. He first sought medical treatment around 2003 when he moved to North Carolina. The Veteran stated that he first injured his right foot in 1989 during basic training. He made it through most of jump school but the pain became too much and he had to stop after the 250 foot tower portion. He asserted that he had right foot problems regularly throughout his military service. In addition to pain in his right foot he had soreness and tenderness. The right foot symptoms he had currently were similar to those he experienced during service. First, the Board finds there is a current right knee and right foot disability. At December 2016 VA knee and foot examinations the Veteran's diagnoses were right knee degenerative arthritis and right knee patellofemoral pain syndrome. As for the right foot, plantar fasciitis and degenerative arthritis were recorded. Thus, the first element of service connection is met. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. Second, there are in-service events. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. The service treatment records (STRs) indicate that the Veteran complained of right foot discomfort and stress fractures that had its onset in November 1989 A February 1990 foot X-ray showed a healing mid shaft fracture of the 3rd metatarsal, a February 1990 non-healing fracture of the 4th metatarsal, a May 1990 profile restricting running, walking (over 15 minutes), marching, standing, and lifting, and a July 1990 notation of chronic stress fractures of the right foot metatarsals. The Veteran also complained of recurrent shin splints in October 1992 and right knee pain in September 1996. As such, a current disability and in-service event has been shown. The issue, then, is nexus. At a December 2016 VA right knee examination, the examiner opined that the Veteran's right knee disability was not likely related to service after a review of the relevant medical evidence, the service treatment records and the veteran's verbal testimony. The examiner explained the opinion as follows: Service treatment records indicate the veteran was evaluated and treated on 10/21/1992 for right knee pain that increased after running. He was treated conservatively. He was evaluated and treated conservatively again on 9/30/1996 for bilateral knee pain that developed after running and climbing stairs. These incidences were considered acute and transitory requiring no further treatment and considered resolved. Radiology report of 5/7/1997 is negative for any abnormalities. No evidence of bony trauma. Anatomical alignment of both knees are well preserved. Both patella appears to be intact. ETS physical examination dated 3/26/1997 mentioned aching knees, foot trouble and broken bones. The examination was normal as well as the follow up x rays. The initial C&P examination dated 5/9/1997 was positive for c/o pain at bilateral knee joints. Veteran reported he developed some pain to the knees after standing and working all day, otherwise they are negative. Veteran had full range of motion on examination. Bilateral knee X rays were negative for abnormalities. The initial VA primary care visit dated 6/12/2003 is negative for any concerns. The examination was negative for any abnormal musculoskeletal findings. The same was true on annual exams dated 4/8/2005 and 7/6/2006. X-rays dated 11/18/2011 indicated small patellar osteophyte. Otherwise negative right knee. This is 14 years post military service. The records indicate the veteran has worked in construction and maintenance since discharge from the military. This involves heavy physical labor to include prolonged walking, standing, squatting, kneeling, lifting, carrying, pushing and pulling. There is no documentation of chronicity concerning a right knee condition in the Service/Medical Treatment Records. There is also no evidence of continuity of care for a right knee condition in the 4 years since military service, which portends against the existence of any chronic disabling condition, much less supporting a nexus back to any in service conditions. Osteophyte formation has been classically related to any sequential and consequential changes in bone formation that is due to aging, degeneration, mechanical instability, and disease (such as diffuse idiopathic skeletal hyperostosis). Often osteophytes form in osteoarthritic joints as a result of damage and wear from inflammation[.] Degenerative joint/disc disease(osteoarthritis) is the most common form of arthritis the disorder most commonly affects joints in your hands, knees, hips and spine. Factors that may increase your risk of osteoarthritis include, but are not limited to: Older age, obesity, joint injuries, genetics and certain occupations with tasks that require repetitive stress on particular joints. I therefore opine that it is less likely than not (less than 50% probability) that the claimed right knee condition was incurred in or caused by military service. It is more likely than not that the claimed condition is due to aging and post military employment. At a December 2016 VA right foot examination, the examiner opined that the Veteran's right foot disability was not likely related to service after a review of the relevant medical evidence, the service treatment records and the veteran's verbal testimony. The examiner explained the opinion as follows: Service treatment records indicate the veteran was evaluated and treated on 11/28/1989 for right foot pain that had been present for 1 day. He was diagnosed and treated for a bruised right foot. He was treated again 2/6/1990 for right foot pain. On exam, he had tenderness on the top and bottom for right foot at the 3rd mt. He was sent to x ray. Radiology report dated 7/10/1990 indicates bone calleous 2nd-3rd metatarsal with evidence of stress fracture age undetermined. These incidences were considered acute and transitory requiring no further treatment and considered resolved. ETS physical exam dated 3/26/1997 mentioned foot trouble and broken bones. He reported to the examiner that he had history of stress fractures of the right foot while on active duty. His physical examination of the feet was negative for any abnormalities. Radiology report of 5/9/1997 is negative for any abnormalities of his feet. No bony trauma. No stress fracture is seen. No post traumatic changes. The initial VA primary care visit dated 6/12/2003 is negative for any concerns. The examination was negative for any abnormal musculoskeletal findings. The same was true on annual exams dated 4/8/2005 and 7/6/2006. Right foot condition was not listed in the problem list of the VA medical records until 2015. Radiology studies did not diagnose "minimal osteoarthritic changes" until 12/30/2016, [t]his is 19 years post military service. Degenerative joint/disc disease (osteoarthritis) is the most common form of arthritis the disorder most commonly affects joints in your hands, knees, hips and spine. Factors that may increase your risk of osteoarthritis include, but are not limited to: Older age, obesity, joint injuries, genetics and certain occupations with tasks that require repetitive stress on particular joints. There is no documentation of chronicity concerning a right foot condition in the Service/Medical Treatment Records. There is also no evidence of continuity of care for a right foot condition in the 18 years since military service, which portends against the existence of any chronic disabling condition, much less supporting a nexus back to any in service conditions. I therefore opine that it is less likely than not (less than 50% probability) that the claimed right foot condition was incurred in or caused by military service. The Board finds that service connection for a right knee disorder or right foot disorder is not warranted as the evidence of record indicates that those current disorders are not related to service. The Veteran made complaints related to the right knee and right foot during service, and made notations of such at discharge. However, in the March 1997 Report of Medical Examination, a clinical evaluation found normal lower extremities and feet. Two months after service, a May 1997 VA examination report noted that the only pain to his joints was bilateral knees after standing and working all day. X-rays at that time were negative for the knees and feet. This weighs against a finding of any knee or foot condition at the time of discharge and shortly thereafter. Further, the December 2016 VA examiner provided negative nexus opinions upon a thorough review of the evidence of record and with a sufficient explanation. The opinions contained multiple references to specific and pertinent service and post-service medical records. In this regard, the December 2016 VA opinions noted that May 1997 VA right knee and right foot X-rays completed just subsequent to service were negative. The Board notes that the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Board accords these opinions significant probative value. The Veteran's assertion that his right knee and right foot disorders are related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of the claimed right knee and right foot conditions, which are complex internal conditions, as opposed to the onset of varicose veins or a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the VA examiner's opinion. Additionally, although the Veteran is competent to report that he has had symptoms related to his right knee and right foot since service, regarding his foot, the Board finds that statement not significantly credible as it conflicts with the statements provided at the May 1997 VA examination in which the Veteran denied foot symptoms. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Moreover, the presence of symptoms is not disputed regarding the knee. The December 2016 VA examiner was aware of and considered the Veteran's assertions of continuity of symptoms for the right knee and right foot and did not find them persuasive. In view of the evidence to the contrary, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology for the right knee and right foot disorders. Additionally, a chronic right knee or right foot condition was not noted within one year from the date of the Veteran's separation from service, and presumptive service connection is not for application. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). As the preponderance of evidence is unfavorable to the claims, service connection for disability of the right knee or right foot is not warranted, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right knee disorder is denied. Service connection for a right foot disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs